should be noted that the Dodd-Frank Act has strengthened and extended the regulation of whistleblowers’ activities under the Sarbanes-Oxley Act. This includes, for example, the protection of employees of a subsidiary under the SOX rules if its finances are included in the financial statements of the parent company. Moreover, a whistleblower who accuses a company of retaliatory action resulting from a SOX-protected report receives the opportunity to sue directly in a federal court without exhausting ←37 | 38→administrative resources.159 Another change is the extension of the period from ninety to 180 days after the detection of an infringement during which whistleblowers have the right to lodge a claim.
Moreover, the Dodd-Frank Act strengthened the provisions of the False Claims Act, among other things, by amending section 3730(h) by ensuring the protection of whistleblower’s colleagues.160
The protection of people who disclose perceived wrongdoings in the United Kingdom is universally considered to be one of the most developed in Europe.161 The regulations in this respect were included above all in three legal acts:162 the Public Interest Disclosure Act of 1998,163 the Employment Rights Act of 1996,164 and the Enterprise and Regulatory Reform Act of 2013.165 The United Kingdom was the first European state which introduced a regulation strictly related to the protection of whistleblowers,166 that is ←38 | 39→the Public Interest Disclosure Act (PIDA).167 Its objective was to protect public interest by quickly discovering and stopping wrongdoings in private enterprises or public institutions; similarly to American regulations.168 The PIDA fits into the British legislation on employment. Pursuant to its provisions, the Employment Rights Act of 1996 was amended.169 Moreover, it was significantly amended on June 25, 2013, as the result of the Enterprise and Regulatory Reform Act. Among the most important introduced changes at that time was the introduction of “a public interest test,” that is the obligation of an employee to demonstrate their belief that they disclose information in public interest, and the abolition of the criterion of good faith that was previously in force, whose application was limited by the above amendment only to the purposes of determining the amount of compensation for whistleblowers.170
The definition of an employee who is protected under the Public Interest Disclosures Act is broader than the definition in the Act of 1996 and covers people employed in all sectors, except for self-employed, volunteers, and employees of armed forces and intelligence service.171 Below, within the scope of the term “an employee” or “a whistleblower,” this text always includes all protected groups, regardless of the legal basis of their employment.
In the discussed Act, there are terms of protected disclosure and qualifying disclosure. Protected disclosure means a qualifying disclosure (in accordance with the definition included in Article 43B) made by an employee in accordance with the requirements specified in Articles 43C–43H of the Act. These requirements concern the making of disclosure to particular entities ←39 | 40→and the fulfilment of certain conditions. The provisions of the Act provide a number of people to whom wrongdoings may be disclosed, depending on the circumstances.
In accordance with Article 43B of the Act of 1996, “qualifying disclosure” means the disclosure of information which – following the reasonable belief of an employee who makes the disclosure in public interest – will prove one or several of the following circumstances:
1. an offence was committed, is committed, or presumably will be committed;
2. a person failed, fails, or presumably will fail to comply with any legal obligation that he is subject to;
3. there occurred, occurs, or may occur a miscarriage of justice;
4. the health or security of any person was, is, or may be at risk;
5. the environment was, is, or may be damaged; or
6. information that any issue which falls within the scope of any of the above points was, is, or may be deliberately concealed.
In accordance with the above, the disclosed information may turn out to not be true. In order to grant protection to whistleblowers, only a reasonable belief of the wrongdoing occurrence is required. Moreover, we should emphasize that an offence may take place outside of the United Kingdom. It does not matter if other than British law is applied in a case of a wrongdoing.172
The protection will not apply if, while disclosing, a whistleblower commits an offence in the form of breaking the Official Secrets Act of 1989173 or the regulations in force in the public office.174
Moreover, the disclosure of information, in which the claim for keeping the legal professional privilege may be sustained in legal proceedings, does not constitute qualifying disclosure, if it is made by a person who disclosed such information as a result of receiving legal advice.175 Whistleblower will ←40 | 41→not be protected, if they are convicted of committing such an offence or if – on the basis of presented evidence – a court is convinced that the whistleblower committed such an offence.
We should also indicate that the PIDA recognizes as qualifying disclosure only confidential disclosure that is not anonymous, which requires greater trust towards addressees.176 It seems that this measure is aimed at discouraging the anonymous disclosure of wrongdoings, because it may make it impossible to determine significant issues in the scope of the disclosed wrongdoings. Moreover, the confidentiality of the disclosure does not have an absolute character, which enables holding those people liable who disclose information, should their actions turn out to be e.g. malicious.
The PIDA offers the following modes of disclosing information with increasing thresholds of protection:177
1) internal disclosure of information to employers;
2) disclosure of information to an appointed external body (of regulatory character) or a member of Parliament; and
3) a broader disclosure of information e.g. to the police, the media, or a non-governmental organization.178
Whistleblowers are encouraged to first undertake internal actions by means of certain restrictions for disclosing wrongdoings outside of workplace.179 Internal disclosure consists of a whistleblower passing information about perceived wrongdoings on the forum of the organization.180 Such a disclosure will be protected, should the whistleblower truly believe it will prove that a malpractice occurred, occurs, or presumably will occur. Pursuant to Article 43C Paragraph 1a of the Act of 1996, qualifying disclosure occurs, should an employee disclose information to his employer. However, if the employee has justified reasons to think that the wrongdoings concern solely or above all actions of a different person than his employer, or matters ←41 | 42→that a different person than his employer is legally responsible for, then he discloses information to the relevant person.181 On the other hand, Article 43C Paragraph 2 constitutes that the employee who – on the basis of a procedure authorized by the employer – makes qualifying disclosure to other person than the employer, must be treated like a person who makes qualifying disclosure to the employer. The above provisions establish that – as a result of informing the management of the employer about the perceived wrongdoings – the management will take steps to clarify the presented information and eliminate potential threats. The objective is to discourage actions undertaken to harm the institution and enable their early detection.182
The implementation of special internal procedures of disclosure examination by employers should be recognized as a good practice. Even though the PIDA does not impose an obligation to establish such procedures, encouraging employees to
